Tuesday, June 29, 2010

Should Obama Have Held Kagan Back?

From one point of view, Elena Kagan is the perfect “stealth candidate” for the Supreme Court inasmuch as she’s both highly credentialed and a jurisprudential blank slate. That suggests to Matthew Yglesias that Obama should have held her nomination back for a later time when he lacks the sizable senate majority he enjoys now:

“Kagan’s poll numbers aren’t good when compared to other recent nominees. But despite that, Republicans are basically waving the white flag and admitting that they won’t make a serious effort to beat her.

“Now of course from a progressive point of view, this is arguably part of the problem. Right now, the GOP would find it difficult to block a nominee no matter how hard they tried simply because there aren’t very many Republican Senators. What’s more, it’s overwhelmingly likely that in the near future there will be quite a few additional Republicans. So arguably if Obama really likes Kagan, he should have kept her in his back pocket as a possible “blank slate” nominee to be deployed in the future at a time when the Republicans have a stronger objective position in the Senate.”

Point taken. But this assumes that Supreme Court confirmation hearings are more about selecting justices than they are about positioning for future elections. Obama’s selection of Kagan now makes perfect sense if he thinks that, on balance, judicial philosophy is not a winning issue for Democrats going forward. Perhaps he’s betting that she's less likely to rile up the Republican base in the mid-terms (at minimal cost to the enthusiasm of the Democratic base) and to mobilize opposition among independents to his reelection than someone, like Diane Wood, who'd have to defend controversial judicial decisions about social issues.